Employee Training Programs

The US Equal Employment Opportunity Commission (EEOC), the lead agency that administers federal anti-discrimination laws, has publicly announced its preliminary data for Fiscal Year 2018 regarding charges of sexual harassment in the workplace.

And while the data are still preliminary, they are striking, perhaps reflecting the growth and influence of the #MeToo movement.

In several key metrics, the EEOC announced it had seen increasing results relating to charges of sexual harassment in the workplace in FY 2018:

  • the EEOC filed 41 lawsuits against employers that included claims of sexual harassment, an increase of over 50% from the previous year;
  • the EEOC obtained $70 million for employees through enforcement action, an increase of over 47% (or $22.5 million) from the previous year; and
  • discrimination charges filed by employees with the EEOC that included sexual harassment allegations increased by 12% from the previous year.

This uptick in activity related to workplace sexual harassment is part of a longer-term emphasis by the EEOC.  For example, the agency launched a training program in October, 2017, following on the heels of the agency’s extensive task force report on workplace harassment that it issued in 2016.  In addition, the EEOC’s Strategic Enforcement Plan for Fiscal Years 2017 through 2021 includes preventing systemic workplace harassment as one of its six substantive area priorities.

In light of the EEOC’s intensifying focus on sexual harassment and the increase in sexual harassment charges filed with the EEOC, employers should consider reviewing and updating their anti-harassment training programs, policies, and practices.

 

In our July 24, 2018 post, we reminded employers that mandatory harassment training was going to be required of all employers in New York. Since that post, the State has issued model training materials that can be found here.

Employers are obligated to provide annual “interactive” sexual harassment training for employees.  New hires must also be given training.

Importantly for employers, they also recently clarified the deadlines for when training must be provided.  Employees must receive training at least once per year beginning on October 9, 2018.  This means that employers must insure that all employees receive training between October 9, 2018 and October 8, 2019.  Thereafter, training should be on an annual basis.  The State backed off initial guidance that said that new hires must be trained within 30 days of hire.  Instead, they simply encourage employers to provide training as soon as possible.

It is still a best practice to provide training as part of an onboarding process for new hires.

There also is some clarification as to what is meant by “interactive training.”  According to the State’s website, interactive training can include any of the following:

  • If the training is web-based, it has questions at the end of a section and the employee must select the right answer;
  • If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner;
  • In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions;
  • Web-based or in-person trainings that provide a Feedback Survey for employees to turn in after they have completed the training

The State cautions that “[a]n individual watching a training video or reading a document only, with no feedback mechanism or interaction, would NOT be considered interactive.”

In general, in person training is often the most effective training as employees are more engaged and can learn from questions posed by their fellow employees.  However, it is not always practical to do in person training.  In those cases, we do recommend a mix of in person and web-based training.

Although employers do not have to immediately provide training for their work forces, time has a way of getting away from all of us.  Arrangements should be made sooner rather than later to get training scheduled.

Yesterday,  I spent a large part of my day talking about harassment training.  Between completing a pitch for new work and scheduling training for existing clients, the questions I faced most were the following:

  1. Where is training required?
  2. How often should an employer do training?
  3. Where training is required, does the training have to be “live”?

With regard to the first question, even in this #metoo era where law makers have struggled to be proactive, the vast majority of states/cities do not have laws requiring harassment training.  In fact, only a handful of jurisdictions require that employees be trained on harassment and discrimination.  Earlier this year, New York State joined California, Connecticut and Maine and will require that employers provide training.  Details about those requirements can be found in our previous blog post here.

Not to be outdone, a few weeks later, the NYC City Council passed a law requiring annual harassment training.  On May 9, Mayor de Blasio, signed the bill into law.  The bill requires employers with 15 or more employees to provide annual harassment training beginning on April 1, 2019.

At least, in NYC, the second question has been affirmatively answered.  It is not yet clear if the New York state law will require annual training or some other frequency.  California requires supervisor training every two years. Maine requires training of all employees, but only requires it within the first year of hire and not on an annual basis.  Likewise, Connecticut requires two hours of supervisory training within six months of an employee obtaining a supervisory position.

That being said, even in jurisdictions where training is not required or is not requires on an annual basis, training should be regularly refreshed.  This helps insure that new hires receive the training but also that employees do not get too relaxed with their co-workers and slip into inappropriate conversations.

I have seen increasingly in litigation that Plaintiffs’ attorneys are attacking the lack of or infrequency of training to argue that the employer condoned harassment and did not have an effective complaint procedure.

The NYC and New York State laws also answer the question of whether training must be live (there is no requirement for live training in California, Connecticut or Maine).  Although training does not have to be live, it does have to be interactive or “participatory.”

The question is what is participatory?  Although the law specifically notes that a live facilitator is not necessary, and the Commission will develop a model training policy, it would seem that at the least an employee should have the opportunity to answer/ask questions.

In my experience, the more interactive training sessions are those that provide real life scenarios for employees to discuss and for managers to discuss how to handle. I think that is difficult to do in an online setting. I’m not saying that there is not a place for online training, I just think that employers should think about augmenting it with live or video conference sessions.

I liken it to the last time you got computer training on a new program.  If you are like me, you can read the instructions from your IT department and seemingly understand it in the training session you are provided, but until you are actually using the computer program on a daily basis, it is difficult to say that you truly understand the program.

As I mentioned above, the Commission will be developing a model online training policy that will set the floor for what NYC employers will be required to cover in the training.  We will keep you posted when that is issued.

Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018, which awaits Gov. Larry Hogan’s signature, imposes stricter waiver and disclosure requirements regarding sexual harassment on Maryland employers beginning on October 1, 2018.  The bill was passed by both houses of the Maryland General Assembly and a Governor’s veto is not anticipated.

The bill impacts Maryland employers in two ways.  First, the bill prevents employers from asking employees to waive their future rights to come forward with sexual harassment complaints and provides that such waivers are void as a matter of public policy.  Second, the bill requires employers with 50 employees or more to disclose: 1) how many settlements the employer has made after a sexual harassment allegation; 2) how many times an employer has settled allegations of sexual harassment made against the same employee; and 3) the number of settlements of sexual harassment complaints that included non-disclosure provisions.  The Maryland Commission on Civil Rights will collect and compile the data and make it publicly available, including the employers’ identities (although not the identities of the alleged harassers or victims).

Maryland employers should  pay close attention to whether any of their contracts, policies, or agreements require employees to waive a future right to assert a sexual harassment claim or complaint.  Any waiver requirements should be eliminated by October 1, 2018, in accordance with the new law.  Additionally, employers subject to the reporting requirement should develop a reliable method of accurately tracking the data required to be disclosed.  This is a good opportunity for employers operating in Maryland to perform a comprehensive review of their sexual harassment policies, make any necessary revisions, and provide training to their managers in an effort to educate their employees as well as reduce the risk of sexual harassment claims being asserted in the future.

 

Monday, New York’s budget bill for FY 2019 was presented to the Governor for signature.  Buried among the usual budget line items are several provisions that will drastically affect employers.

In what seems to be a direct response to the #metoo movement, the bill sets training requirements, prohibits mandatory arbitration of discrimination claims, and outlaws confidentiality provisions in settlement agreements unless specifically requested by the complainant.

The employment related provisions are set forth in S7507-C.  Here are the highlights (or low lights depending on your point of view):

  • Mandatory Harassment Policies:  All employers must have a policy against harassment that complies with or exceeds the model harassment policy that will be developed by the Division on Human Rights.  At a minimum, the policy must:
    • prohibit sexual harassment consistent with guidance issued by the department in consultation with the division of human rights and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
    • include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
    • include a standard complaint form;
    • include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
    • inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
    • clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
    • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
  •  Mandatory Training:  All employers must also provide “interactive” training to their employees.  The Division will also be developing a model training program that must include:
    • an explanation of sexual harassment consistent with guidance issued by the department in consultation with the division of human rights;
    • examples of conduct that would constitute unlawful sexual harassment;
    • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
    • information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
    • address conduct by supervisors and any additional responsibilities for such supervisors.
  • Statements by Public Contractors:  Public contractors submitting a bid for work with the State must include a statement that they have a policy against sexual harassment and that they provide training to employees on that policy.  Public Contractors must generally comply with the policy and mandatory employment training that applies to all employers under new Labor Law §201-g which sets for the policy and training requirements.
  • Prohibition on Mandatory Arbitration Agreements:  No employer may require that a claim of unlawful discrimination or sexual harassment be submitted to mandatory arbitration.  Voluntary arbitration provisions are still okay.  Collective bargaining agreements trump this provision, so if the CBA requires arbitration of discrimination or sexual harassment, then that would not run afoul of the law.  The law only bans this on a prospective basis and the law will not apply to any agreements entered into prior to the effective date of the law.
  • Bar on Most Confidentiality Agreements:  Settlement agreements may not contain confidentiality provisions requiring the complainant to keep the facts of the harassment or discrimination confidential unless the complainant voluntarily agrees to it.  Employers may still put a draft provision in agreements requiring confidentiality for the complainant to review.  The complainant must be given 21 days to review the provision. If the complainant accepts the provision, there must be a separate writing stating that.  Complainants must also have 7 days to revoke their acceptance of the agreement.
  • Provides Protection (and a Cause of Action) for Non-Employees:  the bill makes clear that an employer may be held liable if one of its employees sexually harasses a contractor, subcontractor, vendor, consultant or other non-employee providing services to the employer.

These provisions will go into effect 180 days after the law is enacted.  We assume that the forthcoming regulations may clarify certain aspects of the law such as how frequently harassment training must occur.  We will keep you updated when the regulations are issued.

In the meantime, employers should begin assessing their harassment policies and training programs.  Employers should also review settlement agreements and employment agreements for compliance with the law.

33904038 - top 50 chart ranking or winners result red wax seal stamp

We are honored to have been named by Working Mother Media and Flex-Time Lawyers as one of the 50 best law firms for women.  This is the fourth time we have been named to the list.

Our Firm works very hard to insure the advancement and retention of all attorneys, but we do have targeted initiatives, such as our Women’s Initiative, to focus on female attorneys. The Women’s Initiative, along with the Diversity Committee, serve as resources and advocates for minority lawyers at the Firm.

Diversity initiatives such as these can have many positive impacts on companies, including improving employee morale, decreasing discrimination charges, and reducing employee turnover. Studies have also shown that having a diversity program improves a companies bottom line and can increase customer-base as customers seek to find business partners whose work forces match theirs in terms of diversity.

Diversity programs are not without critics, however.

Employers who are thinking about setting up diversity initiatives do need to be careful that they are not exposing themselves to claims of reverse discrimination.  One of the keys to this is insuring that all employees, regardless of whether part of the majority or minority, understand the importance of these initiatives for the company as a whole.  Another key is to consult with employment counsel as to the lawful interest groups that can be established without violating discrimination laws.

Employers who are looking for some practical suggestions as to human resources policies that help manage diversity can also review the EEOC’s Best Practices of Private Sector Employers for suggestions.

Last week, the EEOC reached a $1.02 million settlement with Vail Run Community Resort Association, Inc. and its management company, Global Hospitality Resorts, Inc.  The settlement came after the EEOC sued based on its allegations that a housekeeping manager, Omar Quezada, repeatedly sexually harassed female subordinates.  The settlement will resolve the claims of 8 female employees.

This case certainly caught my eye because of the size of the settlement, but also because of the other obligations set forth in the consent settlement decree.  Pursuant to the settlement, there are some relatively minor “extras,” for example, giving favorable references and apology letters to the former employees.

The settlement also requires regular training on harassment and discrimination and, more unusually, the appointment of a monitor to assess compliance with the decree.  This is not a simple one-off check-in to see if the the companies are complying with the settlement.  Instead, the companies will have to pay an outside monitor for five years.

22207527_sUnder the settlement, the Spanish speaking monitor will insure that semi-annual training is conducted and will regularly be interviewing employees to determine if harassment or discrimination is occurring.  The monitor will also have to review any and all charges of discrimination during this time period.

If this were a Roadrunner cartoon, that outside monitor would be represented by a 1 ton weight hanging over Wile E. Coyote’s head.  Granted, there are rather serious allegations in the complaint and the supervisor in question has already been criminally convicted of unlawful sexual contact and felony extortion, so this is not your usual discrimination claim.

I think most employers would not relish having a monitor coming into the workplace and speaking with employees.  It may seem counter-intuitive but this is why you want to encourage employees to come to you with complaints, no matter how minor.  If you have an open door policy and then actually investigate the complaints that arise, you, hopefully, are dealing with much less severe situations and resolving them without the employee ever needing to get the EEOC involved.

 

33190898_sI recently read an article that Wawa, Inc. has been sued by a former employee who alleges that she was discriminated against on account of being gay.  What was interesting about the article was what she alleged about how the harassment supposedly started.

The employee alleges that she participated in Wawa’s Gay Straight Alliance.   She says that as soon as her supervisor was made aware of her involvement with the Alliance that he began punishing her — taking away her flex benefits and changing her work location.  The employee also claims that he made fun of National Coming Out Day.

What is alleged in the complaint is a fairly common description of bullying or harassment that we see in complaints.  What makes this unusual is that one of the reasons she was allegedly bullied was on account of her participation in Wawa’s diversity program.  This program seems designed to combat prejudices and to work towards making a more inclusive environment for homosexual employees.

If this complaint is true, then at least one manager did not get the message that this was an important initiative to the company.

Diversity programs can be met with resistance by some employees who believe that the diversity program is giving minority employees more benefits than them, rather than simply leveling the playing field.  Nothing exemplifies this more than the reaction by some to the Black Lives Matter campaign that has been posted in social media.  In response to the campaign, some reacted by posting signs like All Lives Matter.  Clearly, those who posted these signs felt that to say Black Lives Matter meant that other lives did not matter as much, rather than seeing it as an attempt to address perceived racism against black people.  Perhaps if the message was Black Lives Matter Too, people might have understood the message better.

How the message is communicated definitely matters, but it is only one obstacle to a successful program.  For diversity programs to truly work, there must be a commitment to them from the very top of the organization.  There also should be outreach and training to all employees to explain the initiative, demonstrate that the company will not tolerate discrimination, and combat perceptions of reverse discrimination.

There has been some immediate fallout from the Supreme Court’s gay marriage decision in Obergefell v. Hodges.  The decision has become a lightning rod for several Republican candidates who have denounced the decision on religious grounds.  Some, such as Ben Carson, have suggested that Congress pass a law protecting people’s religious views.  Of course, there are already several laws protecting people’s religious views, the First Amendment and the Religious Freedom Restoration Act of 1993 to name a few, but I digress.

19321926_sThe bigger issue and one everyone seems to be forgetting is that these types of “religious belief” arguments to justify discrimination have already been rejected by the Supreme Court.  The Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. seems to have opened the door for employers to argue that their religious beliefs conflict with certain legal requirements (in that case providing insurance coverage for contraception, but easily analogized to gay marriage).  However, in Hobby Lobby, Justice Alito specifically noted that religious beliefs could not be used to justify discrimination:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. . . . Our decision today provides no such shield.  The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

It is true that federal law does not explicitly protect sexual orientation.  However, as we have reported the EEOC has become increasingly focused on same-sex harassment and sexual orientation discrimination as a form of gender discrimination.  Further, many state and local anti-discrimination laws do define sexual orientation as a protected class.

This can be a confusing area for employers since Title VII and many state and local laws require that an employer accommodate a sincerely-held religious belief.  Quite simply, employers cannot justify an employee’s discrimination against gay people because homosexuality is against that employee’s religious beliefs.  Employees must still comply with anti-discrimination laws even if they have a religious objection to homosexuality.

38570848_sIn the vein of a shameless personal plug, I will be speaking as part of a panel in an upcoming Strafford live webinar, “Accommodating Pregnant Workers After Young v. UPS: Navigating New Obligations Absent Clear Court Guidance” scheduled for Wednesday, July 15, 1:00pm-2:30pm EDT.

Our panel will discuss how to reconcile the Court’s vague new standard with EEOC guidance and differing state laws regulating workplace accommodation of pregnancy and pregnancy-related conditions, and offer best practices for crafting workplace policies that avoid Pregnancy Discrimination Act violations.

We will review these and other key issues:

  • What factors might constitute legitimate, nondiscriminatory, nonpretextual reasons for denying an accommodation?
  • Under what circumstances must employers accommodate pregnant employees?
  • What steps should employers take when engaging in the “interactive process”.

I hope you’ll join us.

For more information or to register >

Or call 1-800-926-7926 ext. 10
Ask for Accommodating Pregnant Workers After Young v. UPS on 7/15/2015
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